Inquiry into the National Disability Insurance Scheme
Amendment (Quality and Safegards Commission and Other Measures) Bill 2017
Submission by the
Introduction
The Alliance is pleased to provide a submission to this inquiry. Due to the detail in the Bill and the fact that substantial detail is yet to be worked through to make the regime fully operational, we have provided a mix of general comment regarding the Bill’s intent as well as recommendations concerning specific clauses. If there were opportunity, the Alliance would value discussing the submission and the broader issues it raises with the Committee.
We recognise the need for a robust quality and safeguards system to operate in the NDIS environment, and are pleased to see this Bill establish a framework for a national system. There has been significant work to get to this point and the Alliance has contributed to various consultations as part of this process. On this, the Alliance acknowledges the dedicated work by the team within the Department of Social Services (DSS) and other jurisdictional agencies to reach this point.
While the Framework proposed in this Bill contains the necessary ingredients to deliver a national system, a significant amount of detail remains to be completed. This includes the policies and NDIS rules that indicate how the various functions of the Commission will work in practice.
We note that the quality and safeguards regime proposed in the Bill contains similarities to the Victorian Disability Services Commissioner and Senior Practitioner models and believe this is a good start. The reliance of the NDIS on a market model to provide supports requires regulatory systems to maintain an active role in the cycle of funding and service provision. It is essential therefore that the Commission maintains vigilance concerning accreditation of providers as well as their regulation.
Other safeguarding systems Well documented risks exist for people with disability in closed services. The proposed framework has capacity to manage these through provider management, audits, a code of conduct and sanctions. However, a fundamental weakness in its design is that the proposed framework concerns NDIS providers and activities only. People with disability face risks in many service sectors. The safeguarding systems, complaints processes and sanctions in each service sector (such as aged care, health and education) are of varying rigour and must be brought into comprehensive alignment.
We note that the Commissioner will maintain liaison with other safeguarding systems. While this is important, we believe the Commissioner needs to report regularly on the effectiveness of other systems for people with disability; and highlight changes needed to bring these up to the standard set by the NDIS safeguarding system.
As example, we do not believe that the safeguards regime in the aged care system is fit for purpose to regulate for quality and outcomes of care for NDIS participants living in residential aged care. The risk management and compliance system
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proposed in this Bill is far more rigorous and needs to extend into residential aged care to support younger people with disability accessing services in the aged care system.
Ideally, integration of the multiple safeguarding systems that exist in other service sectors, such as health or aged care, should be progressed. This is something the Commission should be mandated to pursue for services used by people with disability in other service sectors.
Participants as commissioners of their services The fact that NDIS participants now act as commissioners of their own services is a fundamental change that must be reflected clearly in the Bill. This requirement is not simply a change in the point of purchase of services; it is a shift in the focus of service delivery.
Because scheme participants are commissioners of their own services, it is important that the Quality and Safeguarding framework enables participants to be comprehensively informed about the behaviour and ratings of providers, including the commission’s upholding of a complaint about a provider; or the provisional and final outcomes of audits undertaken by it.
Quality Assurance The Alliance recognises the intention behind a sliding scale of risk and levels of regulation within the NDIS market. We are, however, uncomfortable with the statement in the Explanatory Memorandum that ‘the application of the standards is based on the inherent risk of the supports or services and proportionate to the size and scale of a provider.’
The risk of abuse and neglect of a person with a disability, as well as the risk of not receiving the quality of service required, is not related to the size of the provider. The Alliance has seen extremely poor practice by small and large providers both. A provider’s maintenance of an internal Quality Assurance system does not ensure quality outcomes.
The Commission will need to work with participants, providers, advocates and the NDIS to develop a working consensus on how to rate and measure risk in regard to supports. The notion of risk will vary according to a number of variables, so a support that is seemingly low risk for one person will be high risk for others.
Provisions of the Bill Responsibility of providers and key personnel The Alliance welcomes the compliance and sanction regime proposed in the Bill. We have long been concerned that there has been no real mechanism to hold service provider boards and management accountable for failures of service delivery and of adherence to their duty of care.
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Board directors currently face civil and criminal liability for breaches of work health and safety (WHS) and financial management responsibilities. But there are no sanctions currently for breaches of standards and duty of care responsibilities. The weakness of governance arrangements in the disability sector for quality and safety was highlighted in the response to the abuse scandal at Yooralla in Victoria in 2014. Despite numerous inquiries and a sustained public scrutiny that shone a much needed light on the issue of abuse in disability services, as far as the Alliance is aware the organisation maintained its service contracts and no sanctions were imposed on its key personnel.
Following instances of abuse and neglect highlighted in another 4 Corners report earlier this year, the Victorian Government did withdraw service contracts from another provider, Lifestyle Solutions1. But no other sanctions were reported. While this does show some greater rigour in government contract management, it is not sufficient. In the NDIS marketplace, governments will not have contract management responsibility, so the sanctions in this bill are greatly needed.
When abuse or neglect cases are highlighted, providers commonly invoke the ‘bad apple’ defence that apportions blame to a “rogue worker”, but fails to acknowledge the cultural factors that have enabled abuse and neglect to occur within an organisation.
Because of the legal liability of board directors for areas of WHS and financial management, these items are usually standing items on board agendas in concert with organisational policy and procedures to ensure compliance. The legal framework in these areas has led to cultural change in workplaces and industry over time and the Alliance would expect that the sanctions regime in this Bill (together with solid engagement and education) will lead to similar organisational change for safety and quality in provider organisations. We would hope that a policy reform goal in this area is to have legal sanctions regimes for breaches of duty of care or service, consistent with the WHS regime across all human services sectors.
Because the obligation to provide a safe workplace and safe services are components of the same endeavour for providers, the Alliance would like to see strong integration between WHS and the NDIS Quality and Safeguard systems. Doing so will ensure good communication and policy frameworks are developed; conflicts between the safety of workers and the rights and protections of service users can be resolved; and self management policy and practice in both sectors can be developed.
The Alliance notes the ability of the Commission to recruit nominated investigators for its investigations. WHS inspectors could be used for investigations where a service is being delivered in a setting that is both a home and a workplace; and
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Provider registration – code of conduct A requirement for providers to maintain registration must be that their commercial behaviour needs to be consistent with the principles and objectives of the NDIS and with the United Nations Convention on the rights of Persons with Disability (UNCRPD). To ensure that this realignment of the provider sector from its traditional charity approach occurs and is not left to market forces, the Alliance believes a marketing code needs to be added to the code of conduct. The Commission should have powers to oversee provider marketing and to sanction inappropriate campaigns. While marketing is a legitimate activity in the marketplace for services, the characterisation of people with disability must be guided to ensure that archaic imagery of suffering, distress, charity or sadness that is commonly used in fundraising, is not allowed in NDIS related marketing or fundraising. This negative imagery has reinforced a view held by some in the community (including employers) of people with disability as less capable individuals. This view is anathema to the objectives of both the NDIS and the UNCRPD and has no place in the NDIS marketplace. Addressing this important cultural change in provider
Amendment to Section 24
The Alliance strongly disagrees with the proposed amendment to Section 24(1) that adds: (f) such support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with
discrimination on the basis of disability.
The Alliance believes that the determination of service system responsibilities is far too subjective to be used in considerations of eligibility. This determination cannot be made by the NDIS alone without substantial investigation of the dynamics of the applicant’s situation; the interaction of their health needs with their disability; and/or the reality of whether their support needs can in fact can be met by another service system. This is best done under the provisions of S35 in determining reasonable and necessary supports where detailed information about the person can be obtained and discussions held with other service programs.
Many people with complex needs will need to draw services from multiple service programs, of which the NDIS could be one. Their need for one type of support (e.g.from health services) should not preclude the NDIS also providing specialist disability supports. The challenge is for the NDIS planning process to identify the person’s various needs and to facilitate the integration and coordination of linked supports.
The Alliance is aware that, in some cases, NDIS Planners are already making arbitrary determinations about the responsibilities of other service systems and denying liability for particular supports without reference to those programs. These decisions are based on a theoretical appreciation of the split in service responsibility rather than a real appreciation of the service landscape existing around a participant.
A particular example is the refusal of the NDIS to fund consumables items and equipment for participants with tracheostomies and PEG tubes, declaring instead
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that these should be funded by health services. In cases in which the Alliance has been involved, health services have had no mechanism or budget to provide these items, and a cost shift to the participant and their family has resulted.
The other point of friction with this amendment is the need for integrated planning and early intervention to occur for people who acquire a disability and enter the scheme from hospital. For these people, hospitals have indicated that they need to start NDIS planning as early as possible. In cases where personal injury compensation schemes are involved, this involvement occurs as early as two weeks into a hospital stay.
If the NDIS decides at the eligibility stage that the health system needs to meet a person’s needs, this will delay scheme entry and planning and adversely impact on the person’s recovery. This is a particular risk for people recovering from stroke and those who have co-‐morbidities.
The NDIS has no visibility of the service capacity in other service systems. At the point of an eligibility application it is unreasonable to apply an abstract decision about the perceived and, at this point, legally untested boundaries of the NDIS. If there is no equivalent service available to a person from another service system and the person is prevented from participating in an NDIS planning process because they are excluded by a decision under this amendment, a pre-‐emptive denial of support for the person will result.
This proposed amendment is an unsophisticated short cut that will result in preventable cost shifts to jurisdictional health and other mainstream systems. It will also prevent the realisation of those system wide efficiencies that the Productivity Commission relied upon in its initial scheme design.
We understand that there have been participants in the NDIS with zero dollar plans, because the S35 decision has been that the NDIS has nothing to offer at the point of planning. This may seem a strange outcome of service planning but may be related to the participant having episodic support needs.
This situation is preferable however, to a person with an eligible disability being excluded from the scheme and not even having the opportunity for a planning episode, despite them having unmet need. If a person has a zero dollar plan, but retains the capacity to access NDIS supports in the future if their situation changes; and can do so without having to jump through further hoops at a point of crisis, the NDIS is no worse off financially.
S35 is the primary mechanism for the scheme to manage its cost. The use of the existing sections 24 and 35 already provide an effective means of liability management for the scheme and do not need to be changed. The issue remains that the NDIS must invest in good planning processes to meet participant need and manage liabilities.
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The difficulties in working out the exact line between service systems and the interface arrangements the NDIS needs to implement, are well documented in submissions to the Productivity Commission (PC) review of NDIS Costs. In addition to the Alliance’s submissions to the review2, the NDIS itself told the PC:
The three key challenges the NDIA has experienced during trial and transition in relation to mainstream supports are:
- Difficulty in holding mainstream accountable;
- Variable understanding of mainstream obligations
- Lack of clarity around some interfaces
Although there may be a clear understanding of the agreements between governments at the highest levels, further work is required on guidance at the operational level for staff in interpreting the role of mainstream services.
and:
Individual instances can be rectified with the intervention of the NDIA using identified and existing issues escalation mechanisms. As the Scheme expands it is important that representatives of all levels of Government understand the principles and delineation between systems, to avoid unnecessary distress for participants. Further, the Department of Social Services indicated in their first submission to the review that the COAG interface principles are hard to operationalise:
COAG has agreed the overarching policy relating to system responsibilities, through the Principles to Determine the Responsibilities of the NDIS and Other Service Systems, which are supported by the Applied Principles and Tables of Supports. As the NDIS is implemented some of these boundaries are being tested and clarified. In addition, at an operational and jurisdictional level, there needs to be clarity on how interfaces work between the NDIS and mainstream service systems. These interfaces should be made public so that participants know where to turn to and what to expect. Solutions will often be needed at a local level, rather than nationally. There are emerging good practice examples of interface management, through detailed work undertaken by jurisdictions and the NDIA. DSS will facilitate the sharing of this work through senior officials and DRC Ministers.
2 See the YPINH National Alliance submissions 187 and 326 at http://www.pc.gov.au/inquiries/current/ndis-‐costs#report
3 National Disability Insurance Scheme; Submission to the Productivity Commission Review of NDIS Costs, Submission 161, p59 http://www.pc.gov.au/__data/assets/pdf_file/0013/216031/sub0161-‐ndis-‐costs.pdf 4 Ibid, p60
The roles of the Commissioner
The Alliance supports the 4 proposed roles of the Commission, but believes an additional role could be added: that of inquiring into service gaps created at the interface of the scheme with other service systems.
The service gaps created or exacerbated by the introduction of the NDS are beginning to become more visible as the scheme is implemented. Current governance arrangements have not allowed these to be fully interrogated and their impact measured.
As we have stated in our submissions to the current Productivity Commission Review of NDIS Costs, the management of the schemes interfaces with other systems and the capacity of mainstream programs to provide capable and relevant supports to people with disability, are key risks for the NDIS and the governments that own the scheme. This impacts on the quality of support programs and the capacity of the NDIS to work with other systems to facilitate positive participant outcomes.
These governments have actively closed down service programs to release funds to resource the NDIS. The resultant pressure to resurrect or develop new services outside the NDIS, as well as meet their funding commitments to the scheme means these jurisdictions are conflicted in regard to addressing the service gaps that have arisen.
We are aware that the Joint Standing Committee on the NDIS is conducting an inquiry into the transition to the NDIS that is covering some of the interface issues. While this inquiry will be undertaken at a particular point in time and with regard to one level of government, we hope the ongoing tension around the schemes interfaces with other programmes can be examined from a quality and safeguards perspective. Having visibility of the interfaces with mainstream systems will enhance the Commissions capacity to effectively liaise with and integrate the safeguarding systems in these other non-disability areas.
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As an independent office, the commission is well placed to investigate service gaps and service development opportunities and report on them on a regular basis. Given the rich information that will flow to the commission in its other roles (including complaint handling and investigations), this role can be well informed and enable outine and deep engagement with State and local government, service providers and people with disability in ways that a parliamentary committee cannot.
In this context, an additional role for the Commission could be to investigate and report on scheme interface and boundary issues, including the ILC; the impact of the removal of community programs; and the experience of people with disability who are ineligible for the NDIS.
Service quality The quality of services NDIS participants depend on requires a highly trained and appropriately remunerated workforce.
The Alliance believes the Commissioner should maintain a watching brief on the NDIS pricing schedule to ascertain whether low prices are an impediment to the delivery of quality services; and identify particular pricing arrangements requiring review.
The interaction of the Quality and Safeguards regime with the Aged Care accreditation system The aged care system provides residential care to over 6500 people under 65 years, The overwhelming majority of whom will become NDIS participants.
The Alliance is aware that the NDIS has recently commenced the transition of these younger people living in nursing homes (YPINH) into the NDIS. This transition is almost a year late, the delay due to lengthy negotiations between the NDIS and the Department of Health concerning funding and legislative arrangements of the NDIS with aged care legislation.
A position has been agreed wherein the NDIS reimburses the Department of Health for the funding amounts paid to aged care providers for NDIS participants. In addition, the NDIS will fund the contribution to care costs payable by participants to their aged care providers.
The NDIS has also indicated that it will fund maintenance therapy, equipment and community access supports as well as support coordination to access community activities and locate alternative housing where the participant requests this. This effectively makes the NDIS the funder of all support required by scheme participants living in residential aged care.
The Alliance has been advised by the NDIS that, as a matter of policy, the scheme will not fund additional personal care support required by participants in aged care. The scheme is taking the discredited view that the aged care system is responsible
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for the full support of younger residents, despite aged care funding being inadequate to this task and the NDIS now being the funding body for scheme participants living in residential aged care services.
It has further been agreed that the aged care accreditation system will be applicable to safeguard the care and support of NDIS participants in residential aged care. Because the aged care system provides the supports, providers are obliged to comply with the aged care standards regardless of age or funding source. Concern has also been expressed that mandating the NDIS safeguarding system to apply to younger residents who are NDSI participants would impose an unreasonable administrative burden for aged care providers.
The Alliance recognises these factors, but fundamentally believes that the aged care accreditation system cannot effectively monitor individual service quality or participant outcomes and is not a compatible or substitute regime for the NDIS safeguard system. Failures of the accreditation system have been well canvassed.
The NDIS’ refusal to fund additional personal care for scheme participants in nursing homes will have the dual effect of not fully supporting residents with very complex needs; and compromising the capacity of aged care providers to meet their accreditation standards. Younger people have found their way into residential aged care because of a lack of capacity in the disability system. Providers and families have told the Alliance that this group of residents create significant service delivery challenges because of their complex needs and the limited funding residential aged care has available to provide the supports they need. This can include areas such as behaviour management, transfers, skin integrity management, staff training and consistency as well as scheduling multiple staff for routine procedures.
The aged care system was never designed to meet the needs of younger people with disability and complex needs. While providers go out of their way to meet the needs of younger people, this often involves significant cross subsidy from other residents and a reliance on goodwill from staff. Some elements of NDSI operations and objectives, such as control and choice over the timing, intensity and type of support; the choice of provider and support staff; and delivery of goal based individual programs for a resident’s, are difficult to implement in aged care.
The lack of minimum staffing requirements in residential aged care means there is no way of guaranteeing a particular level of support to any individual resident. Yet this is a minimum expectation of the NDIS under s35 of the NDIS Act (individualised support and value for money).
While residential aged care providers will provide a range of supports to NDIS participants, they will not be subject to the provisions of the Commission. Aged care accreditation covers 44 standards of care, but it does not have similar intent or coverage as the proposed NDIS Quality and Safeguard Commission. Nor does it have similar sanctions and complaint handling provisions.
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The aged care accreditation system is not a dynamic provider management system. If the NDIS wants to ensure achievement of participant goals and outcomes and value for its reimbursement of ACFI funding, it will need a much more thorough provider management arrangement. The NDIS advises that it will rely on funded coordinators to monitor quality. But these personnel have no mandate in the aged care system and can only activate the aged care complaint system to make orders for changed practices.
We would like to see the Commission take a particular interest in the provision of supports to NDIS participants in residential aged care. The Alliance would also like to see the Commission actively monitor the effectiveness of the aged care accreditation agency with regard to specific oversight of NDIS participant plan implementation, goal attainment, staff training and compatibility, choice and control and restrictive practices.
The inadequacies of the aged care accreditation system were apparent in the significant abuse uncovered recently at Adelaide’s Oakden facility. In that case, the South Australian Government relied on the Aged Care Accreditation Agency to monitor the service’s quality and failures were not fully recognised. In fact, the Oakden facility passed its 3-yearly accreditation audit in 2016. A subsequent independent report into the care failures at Oakden concluded:
‘It is an important lesson for all involved in trying to ensure that the best care is provided that reliance only on periodic reviews, such as accreditation, leads to a sense of comfort that may not be meritorious’
The Alliance fears that a system of periodic document based review will not effectively monitor or manage the significant risks for young residents in aged care. Because the NDIS is the funding body for these young people, it must have more direct line of sight and influence over aged care provider practice.
The role of the senior practitioner and behaviour support plans is one area that will require some detailed work with aged care providers. While they are not required to be NDIS providers to deliver their residential service to NDIS participants funded by the scheme, the commission must have visibility of practice in aged care, including the application of monitored behaviour plans.
There is no routine scrutiny of restrictive practices in aged care and things such as denial of access to motorised wheelchairs and scooters, call buzzers being placed out
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of reach, seclusion and residents being placed in locked areas, are all practices that have been reported to the Alliance by younger residents and their families.
The impact of this requirement in the Bill on the aged care standards regime and the administrative requirements of aged care providers will need to be closely considered. There has been little preparation of the aged care industry in regard to the NDIS. The NDIS Quality and Safeguards regime, the role of the Commissioner and the Senior Practitioner have also not been well canvassed with the aged care sector. A detailed consultation around the rules and operation of the regime in aged care settings will be required. Providers have already expressed reservations about being subject to a second accreditation and standards regime for the NDIS.
This position seems at odds with S34 of the NDIS Act that says that decision making needs to be done for each individual participant. We hope that this misguided policy position can be amended at an early opportunity. If it is not, the Alliance believes this circumstance should be one of the first investigations conducted by the Commissioner.
Given the shortage of alternative housing and support options, residential aged care will remain part of the service system for people with disability for the foreseeable future. It is essential that workable solutions to the funding of support and the application of a quality and safeguard system are developed. Campaign rhetoric that the NDIS will resolve the YPINH issue has been taken at face value by the aged care and disability sectors. However, the resolution of these issues is highly technical and will require a significant investment in consultation and policy development as well as legislative change.
The Alliance recommends a dedicated piece of work be commissioned to examine the issues at the interface of the NDIS and aged care systems and a rigorous quality and safeguarding solution be developed that can be applied in both.
The Community Affairs Committee is currently inquiring into the Aged Care Accreditation system and this Inquiry will report in early 2018. The Commission is unlikely to be operational and will not be able to participate in this inquiry. When it is established, however, the Commission should take a close interest in the Inquiry report.
Further Contact If more information is required please contact:
Alan Blackwood Director of Policy and Innovation